A Guatemalan judge has ruled that there is sufficient evidence to initiate criminal proceedings against former army chief Benedicto Lucas García for the illegal detention, torture, and sexual violence committed against Emma Guadalupe Molina Theissen and the enforced disappearance of her 14-year old brother Marco Antonio Molina Theissen. The judge, Víctor Hugo Herrera Ríos of High Risk Court C, also accepted new charges of aggravated sexual assault brought by the Attorney General’s Office against the other four defendants in the case.

The original four defendants – retired military officials Hugo Ramiro Zaldaña Rojas, Edilberto Letona Linares, Francisco Luis Gordillo Martínez, and Manuel Antonio Callejas y Callejas – were arrested on January 6, 2016 and charged on January 13, 2016. The judge originally in charge of the case, Judith Secaida of the Fifth Criminal Court, accepted the original charges presented by the Attorney General’s Office against the four accused, including the crime of enforced disappearance against all four defendants and crimes against humanity against all defendants except Callejas y Callejas. The case was later moved to the High Risk Court system and is now being heard by Judge Herrera Ríos. Lucas García was also arrested on January 6, 2016 but in relation to the CREOMPAZ case. He was charged in the Molina Theissen case in August.

During the hearing, the defense lawyers sought their clients release from pre-trial detention, but the judge rejected their request. The judge also rejected the petition by the Prosecutor General’s Office (PGN) to recuse itself in the Molina Theissen case.

Judge Herrera Ríos gave the Attorney General’s Office six weeks to culminate its investigation in the Molina Theissen case and scheduled the final hearing in the intermediate phase of proceedings for December 9, 2016.

Details of the hearing

The hearing started almost an hour and a half later than scheduled. Judge Herrera Ríos began by exhorting the parties and the observers in the courtroom to refrain from interrupting the proceedings or making any comments. He stated that if there were any problems, he had the authority to remove disruptive elements from the hearing. As previously documented, in earlier proceedings some of the defendants, as well as members of their family, have interrupted hearings, verbally and physically intimidated members of the press, and have been disrespectful to the Molina Theissen family and human rights observers. As a result of the judge’s admonishments, the proceedings continued without incident.

After confirming the presence of the parties, the judge stated that he was disallowing the PGN’s request to recuse itself from the case because the state is responsible for the acts or omissions committed by its public functionaries. He added that the crime of enforced disappearance is a permanent crime and is not subject to statutes of limitation, noting that to-date, the remains of Marco Antonio Molina Theissen have not been returned to the family. Finally, the judge noted that the victims have the right to demand reparations from the state when they have been victimized by state functionaries.

Judge Herrera Ríos then turned to his resolution about whether to accept the charges presented by the Attorney General’s Office against Benedicto Lucas García, as well as the new charges against the other four defendants. He began reading a summary of the accusation presented by the Attorney General’s Office against the five former military officials, followed by a presentation of the crimes attributed to each individual.

The judge ruled in favor of the petition presented by the Attorney General’s Office to expand the indictment against the original four defendants in the Molina Theissen case to include the crime of aggravated sexual assault against Emma Guadalupe Molina Theissen. The original charges of the crime of enforced disappearance against the four defendants presented by the Attorney General’s Office had been previously accepted. The judge also ruled to accept the charge of crimes against humanity in the case of former intelligence officer Manuel Callejas y Callejas, who unlike the other three co-accused, had not been charged for this crime previously.

Command responsibility?: Lucas García

In his explanation of his ruling finding sufficient evidence to charge Lucas García, Judge Herrera Ríos laid out a series of antecedents that informed his decision. He stated that the events under investigation – the illegal detention, torture, and sexual violation of Emma Guadalupe Molina Theissen and the enforced disappearance of her 14-year old brother Marco Antonio – occurred in the context of the internal armed conflict.

He noted that during this period, the Military High Command adopted a policy of persecution against those it considered to be the “internal enemy” of the state. The judge also affirmed that there is ample international and domestic jurisprudence for the concept of command responsibility, that is, the legal doctrine that individuals in superior positions who do not prevent or punish subordinates from committing international crimes may be held individually criminally responsible. Within the military hierarchy, he stated, it has been determined by several courts in Guatemala that the superior commander has responsibility for the action of subordinates in military operations carried out in the field. Among others, he cited the 2009 sentence in the case of El Jute, in which a court in Chiquimula found Coronel Marco Antonio Sánchez Samayoa, commander of the Zacapa military base, guilty for ordering the enforced disappearance of eight individuals, along with three military commissioners who were convicted as the material authors of the crime.

Furthermore, the judge stated that there is sufficient prima facie evidence to affirm that during the government of General Romeo Lucas Garcia (1978-82), which is the period in which the events under consideration took place, there was a policy of enforced disappearance. This conclusion was based on the findings of the Historical Clarification Commission (CEH), as well as four judgments emitted by the Inter-American Court for Human Rights in cases that took place during the Lucas García period. He affirmed that there is also sufficient evidence to establish that sexual violence against women was a systematic practice during the Lucas García government.

The judge noted that there is sufficient evidence to believe that Zaldaña Rojas had Emma Guadalupe Molina Theissen under his direct control while she was held in captivity at Military Zone No. 17; that Letona Linares and Gordillo Martinez had knowledge of her arrest, interrogation, and escape; that Callejas y Callejas shared intelligence information from the second unit of the Military High Command (Intelligence Directorate G-2) to the commanders of the military base and had knowledge of the operation that resulted in the illegal capture of Marcio Antonio Molina Theissen; and that Benedicto Lucas García designed and ordered the implementation of counter-insurgency plans, which included the creation of a circuit of clandestine illegal detention centers – primarily military bases.

Based on these findings, the judge stated that he was accepting the charges of aggravated sexual violation against the original four defendants in the case: Zaldaña Rojas, Letona Linares, Gordillo Martínez, and Callejas y Callejas. He also added to the charges against Callejas y Callejas the charge of crimes against humanity. Finally, he stated that he accepted the charges against Benedicto Lucas García for enforced disappearance, crimes against humanity, and aggravated sexual assault.

Following the presentation of his findings, the judge proceeded to rule on the question of whether the five defendants would remain in preventive custody. The counsel for the defendants, as well as the representative of the PGN, had earlier called for the accused to be released.

The plaintiffs requested that the defendants remain in preventive custody. Erick de León, representing the Attorney General’s Office, argued this was necessary because the defendants were part of the military high command. He also noted that Gordillo Martinez was a member of the military junta that took power via a coup d’état with José Efraín Ríos Montt in March 1982.

Alejandro Rodríguez, in representation of the Molina Theissen family, reiterated these concerns and also noted that according to a publication of the Washington Office on Latin America (WOLA), several of the military officials charged in the Molina Theissen case have links to organized crime and are members of the “LaCofradía” organized crime syndicate. (This was a reference to the 2003 publication, Hidden Powers in post-conflict Guatemala, which reports on allegations that Callejas y Callejas was the head of La Cofradía but does not mention any of the other accused in this report.)

Julio Anaya, defense counsel for Callejas y Callejas, reacted sharply to the allegation that his client has links to organized crime, stating that he would sue Rodríguez for libel. Jorge Lucas Cerna, Lucas García’s son and lawyer, said that if there was no evidence demonstrating his client’s involvement in organized crime, then this was slander and he also would sue Rodríguez for libel.

The judge ultimately ruled in favor of keeping the five accused in preventive detention.

The final pre-trial hearing will take place December 9, 2016. At this time, the judge will decide whether the five defendants will face trial.

Jo-Marie Burt is an associate professor of political science and director of Latin American Studies at George Mason University. She is also a Senior Fellow at the Washington Office on Latin America (WOLA). This report was prepared with the assistance of Paulo Estrada, human rights activist, archaeology student at San Carlos University, and civil party in the Military Diary case.